Saturday, November 30, 2013

Our esteemed Sheikh, I would like to request from you that you clarify the hukm (ruling) on dealing with Islamic banks, specifically the issue of profit sales (murabaha) such as buying a car or house through the Islamic bank. I know that it is haram but when I give advice to someone regarding this I cannot explain the matter in details. I would like to give an example from our reality that people say it resembles the Islamic Bank in how they deal... where we reside you can make an agreement with the building companies to build a complete house for you in payment instalments (checks) while they contract welders, carpenters, cement...etc. for a specific rate for the materials (e.g.15%), and while they do not own the house, is there any difference between this transaction and that?

From Hasan S. Al-Tarda

Answer:

Wa Alaikumu Assalaam wa Rahmatullah wa Barakaatuhu

1. Islamic banks transactions which are called profit sales are transactions contradictory to the Shari', as highlighted in the following:

First: The bank conducts the contract of sale with the buyer before it buys the car or refrigerator. The Prophet صلى الله عليه وسلم prohibited selling of that which you do not own, from Hakeem Ibn Hizam, said:

I said: "O Messenger of Allah, a man comes to me to buy (a product), but I do not have what he asks for, I sell it to him later from the market". He صلى الله عليه وسلم said: "Do not sell that which you do not own". [Narrated by Ahmad]

This man asked the Prophet صلى الله عليه وسلم about the buyer who comes to buy a product from him which he does not have, so he goes to the market and buys it then sells it to him.

The Prophet صلى الله عليه وسلم prohibited him from this unless the product is with him and he presents it to the buyer, if the buyer wishes to purchase or not.

To elaborate further: The one who asks the bank for a financial loan, he will be questioned by the bank for the reasons for borrowing the loan or money. The borrower will say that it is to buy a refrigerator or car or washing machine, the bank will conduct the deal with him to buy the product for him and then sells it to him in instalments for a certain price.

This agreement becomes binding even before the bank purchases the refrigerator for the person; the person cannot back down from buying the refrigerator from the bank, because the agreement with the bank has taken place before the product became the possession of the bank, the contract is conducted before the bank owns the refrigerator.

It is incorrect to say that the bank sells the product to the buyer after the bank have bought it, because the contract between the bank and the buyer was conducted on a binding basis before the bank purchases the product with the proof that the buyer cannot refuse to buy it after it has been purchased by the bank for him, because the contract was conducted on a binding basis before the bank have purchased the product.

If the bank had a warehouse with products e.g. refrigerators inside and it showcases them for the person then he chooses to buy or not just like with any other sellers, then the sale in cash or in instalments is permitted.

Second: It is not permitted to increase the value of the installments if the buyer delays the payment of one installment, i.e. the value of the debt increases; because this is Riba and it is called accrued interest (riba an-nassi'a) and this was practiced during the Jahiliya time if the time for payment arrived and the debtor was unable to re-pay due to the assigned date and the increase in debt which Islam came to prohibit absolutely, and granted the debtor who is facing hardship no increase in the value of the debt

"And if someone is in hardship, then [let there be] postponement until [a time of] ease. But if you give [from your right as] charity, then it is better for you, if you only knew"

(Al-Baqara: 280)

According to what is mentioned above, this transaction with the bank is not allowed.

2. As for what you have mentioned in terms of contractors, the situation is different. There is no contract of sale for a house which is not owned by the contractor, the situation is that the land owner makes an agreement with the contractor for a leasing contract to build the house according to the criteria for a wage that the house owner gives to the contractor in installments to finish the job, it is not a contract of sale for a house in the air that is not owned by anyone.

If the reality is that it is the selling of a flat which is not built yet and the contractor does not have a correct ownership of it then the sale is not permitted.

These are the question and answers that were asked to Sheikh Abu Talha related to spending of your wealth that Allah(swt) blessed a person with and how to treat needy and poor.Questions related to Israf (extravagance) and Zohud (Leaving worldly things behind) were also addressed.

The following is the translation of an article from the book by Hizb ut-Tahrir entitled 'Introduction to the Constitution and the necessary evidences for it' which is the explanation of its draft constitution for the Khilafah state. This draft translation is from the second edition published in 2009 which was updated from the original published in 1963. Numerous brigades in Syria have agreed to the implementation of this constitution after the removal of the corrupt system that has brutally suppressed the people for decades.

Article 12

The Book, the Sunnah,
the Ijmaa’ of the Sahabah and the Qiyas (analogy) are the
only evidences considered in Shari’ah laws, and it is not permitted to
adopt any legislation from other than these evidences.

This article does not imply that the State will adopt
a method of Ijtihad; it rather means that the State will follow a
specific method when adopting the Shari’ah rules. This is because the
adoption of the Shari’ah rules could either be obligatory in some cases
or, in other cases, permitted for the State. If this adoption were to be
conducted in two contradictory methods, it would lead to a contradiction in the
basics upon which the adoption has been conducted. Therefore, the State ought
to adopt a specific method in adopting the Shari’ah rules. Three reasons
prompted the adoption of such a method in the adoption of rules:

Firstly, the rule by which the Muslim should proceed
is a Shari’ah rule and not a rational rule; in other words, it is the
rule of Allah in the matter and not the rule laid down by man. Therefore, the
evidence from which this rule is deduced must be what the Revelation has
brought.

Secondly, the confirmation that the evidence - from
which the rule has been deduced - has been brought by way of Revelation must be
conclusive. In other words, it is imperative that the evidence, from which the Shari’ah
rule has been deduced, has conclusive and decisive, not indefinite, evidence
that it has been brought by way of Revelation. This is because it is part of
the Usul (foundations) and not part of the branches; thus, to be most
likely or probable is not sufficient since it is part of the ‘Aqidah
matters and not part of the Shari’ah rules. This is so because the
evidence required to deduce the rule from is evidence which has come by way of
Revelation, not just any evidence. Therefore, it is imperative to decisively
confirm that it has been brought by way of Revelation and the process of
confirming that it has been brought by Revelation is an ‘Aqidah matter
not a Shari’ah rule. Therefore, it is imperative to establish that the
evidence has come by way of Revelation by definite evidence because matters of ‘Aqidah
can only be taken conclusively.

Thirdly, what is conclusive is that man’s behaviour in
life proceeds according to his concepts about life. Although the viewpoint
about life has the ‘Aqidah as its basis, it is nevertheless formed of a
host of concepts, criteria and convictions which are existent in the Ummah.
Not all of these thoughts, which are reflected in this host of concepts,
criteria and convictions are part of the matters of ‘Aqidah. Rather,
some of them are from the matters of ‘Aqidah and others are part of Shari’ah
rules, and since rules are deduced with the least amount of doubt it is
therefore feared that if the origin of the rules has not been conclusively
confirmed as being brought by way of Revelation, then some of the non-Islamic
thoughts may creep into the Ummah due
to the presence of Shari’ah rules deduced from a foundation which
Revelation has not brought in the first instance. If it is widespread and used
over a long period of time it will influence the viewpoint about life held by
the Ummah and consequently affects its behaviour. Accordingly, it is
imperative to confirm that the evidences, upon which rules to be implemented by
the State are deduced, must be those evidences brought by Revelation.

It is for these three reasons that the adoption of a
specific method, according to which the Shari’ah rules are adopted, is
imperative. As for the fact that the evidences are confined exclusively to the
four general evidences mentioned above, this is confirmed through study. We
have studied and scrutinised the evidences that have been confirmed by a
conclusive evidence to have been brought by way of Revelation and we have not
found anything other than these four at all.

As for the Quran, the evidence about the fact that it
has been brought by way of Revelation from Allah (swt) in letter and spirit is
conclusive. The miracle of the Quran serves as conclusive evidence that it is
indeed the Word of Allah (swt) and not the word of man. Therefore, the
conclusive evidence has been established that the Quran is the Word of Allah
(swt). The Quran itself, which has been conclusively confirmed as being the
Word of Allah by the evidence of the miracle, states that it is Revelation that
descended upon the Messenger of Allah ; Allah (swt) says: “With it came down the Faithful Spirit * To
your heart so that you admonish” (TMQ
26:193-4);

“And
this Quran has been revealed to me” (TMQ 6:19);

“Say
I only warn you according to Revelation” (TMQ 21:45);

“We
have not sent down the Quran to you so that you become distressed” (TMQ
20:1);

“As to you the
Quran is bestowed upon you” (TMQ 27:6);

“It is We Who
have sent down the Quran in stages” (TMQ 76:23)

and “We revealed to you an Arabic Quran” (TMQ
42:7).

These are conclusive evidences establishing the fact
that the Quran has been brought by way of Revelation from Allah (swt).

As for the Sunnah, the conclusive evidence
about the fact that it is Revelation which has come from Allah (swt) in
meaning, and that the Messenger of Allah expressed it by his own
words is what came clearly indicated in the Verses of the Quran. Allah (swt)
says: “Nor does he speak of his desire. It is no less than Revelation sent
down to him” (TMQ 53:3-4);

“We
have sent you Revelation as We sent it to Nuh and the prophets after him” (TMQ
4:163);

“I
only follow what is revealed to me” (TMQ 6:50);

“Say
truly I only follow what is revealed to me by my God” (TMQ 7:203);

These are clear evidences denoting that whatever the
Messenger of Allah has uttered in terms of
the Sunnah has come by way of Revelation; they also serve as clear
evidences denoting that Allah (swt) has explicitly ordered us in the Quran to
abide by what the Messenger of Allah ordered us and to
abstain from what he prohibited for us. This
command is general. Hence, the evidence about the fact that the Sunnah
has come by way of Revelation is conclusive because it has been established by
a conclusive Quranic text that is definite in its intended indication.

As for the Ijma’ of the Companions, which is considered
a Shari’ah evidence, it means the general consensus of the Companions
that such rule is a Shari’ah rule, or their general consensus that the
rule pertaining such and such matter is so and so. Hence, if they unanimously
consented about a certain rule as being a Shari’ah rule, their Ijma’
(general consensus) would be considered a Shari’ah evidence.

The evidence for this is reflected in two matters:
firstly, Allah (swt) praised them in the Quran through a text that is
conclusive and definite in meaning. Allah (swt) said: “The vanguards and the first from
among the Muhajirin and the Ansar, and those who followed them in all the good
deeds, Allah is well pleased with them as they are with Him, and He prepared
for them gardens under which rivers flow so as to dwell therein forever; that
is the great success.” (TMQ 9:100)

This praise by Allah (swt) of the Muhajirin
(emigrants), the Ansar (Helpers) and those who followed them with
righteousness, due to their emigration and their support, is a praise of the
Companions because those praised are the Companions and the meaning of the
verse is confined to them. This praise is for all of them and the truthfulness
of those whom Allah (swt) praises in such a way is conclusive.

The second matter is that we have taken our Deen from those Companions since they
are the ones who transmitted to us the very Quran that had descended upon our
master Muhammad . Hence, if we assumed that a flaw were to creep into one
single matter from among what they had agreed upon, this means that the flaw
could creep into the Quran; in other words, the flaw could creep into the Deen which we had taken from them and
this is impossible from the angle of Shari’ah. Therefore, although it
would not be rationally impossible for the Companions to unanimously agree upon
an erroneous matter - for this could happen since they are only human -
however, this could not possibly happen to them from the Shari’ah point
of view since if this were possible, it would then be possible for error to
creep into the Deen. In other words, it would be possible for error to
creep into the fact that this Quran that we have today is the very same Quran
that descended upon our master Muhammad , and this is impossible from the Shari’ah point of view; thus, it would be impossible
for them to generally consent on something erroneous.

This serves as a conclusive proof that the Ijma’
of the Companions is a Shari’ah evidence. In addition, Allah (swt) says:
“We
have without doubt sent down the Quran and We will assuredly protect it” (TMQ
15:9).
Therefore, Allah (swt) has promised to protect the Quran and he who transmitted
this Quran is he who protected it; thus, this serves as evidence about the
truthfulness of their Ijma’ in transmitting and compiling the Quran.
Hence, it serves as proof about the soundness of their general consensus
because if it were possible for their consensus to be flawed, it would be
possible for the transmission of the Quran to be flawed and it would be
possible for it to be unprotected. Therefore, since the non-protection of the
Quran is impossible, as indicated by the Verse, then it is impossible for error
to creep into its transmission or its compiling or its protection. Hence, the Ijma’
of the Companions is a conclusive evidence.

However, what should be made absolutely clear is that
the Ijma’ of the Companions stipulating that such and such rule is a Shari’ah
rule is simply uncovering an evidence; in other words, there exists for this
rule an evidence derived either from the action, words or silence of the
Messenger of Allah, and that the Companions transmitted the rule but did not
transmit the evidence. Hence, their transmission of the rule discloses the fact
that there exists an evidence for that rule. Therefore, their general consensus
does not mean that their personal opinions are in agreement over a specific
matter for their personal opinions are not Revelation and each one of them is
not infallible; thus, a companion’s opinion cannot be regarded as a Shari’ah
evidence. This is because the Shari’ah evidence must be brought by way
of Revelation in order to be considered as Shari’ah evidence, and the
Companions’ opinions are not like that; therefore, they cannot be considered as
Shari’ah evidence whether these were the opinions upon which they agreed
or the opinions over which they disagreed. For this reason, the Ijma’ of
the Companions does not mean their agreement upon one single opinion, it rather
means their general consensus about the fact that a rule is a Shari’ah
rule, or such and such rule is a Shari’ah rule; in this case, it is not
their opinion but rather a general consensus that it is from Shari’ah;
hence, the Ijma’ of the Companions is simply uncovering an evidence.

As for Qiyas, it is also Shari’ah
evidence. Linguistically it means estimating and in the Usul terminologyit is the making
of analogy between a known matter upon another known matter in order to either
confirm a rule for both of them or to disclaim it for both of them due to a
mutual factor between them. Thus, it is comparing the rule of a known matter to
another known matter due to their association in the ‘Illah (the reason)
of the rule. Accordingly it is the extending of the root to the branch or in
other words the joining of the branch to the root. The meaning of
carrying a known fact upon a known fact means that one of them shares the same
rule with the other, so the rule of the root is established for the branch, and
the branch shares the same rule as the root. This rule of the root could be a confirmation;
Al-Bukhari reported from Ibn Abbas “A woman from Juhaynama came to the
Prophet and said:'My mother made an oath to do
the pilgrimage but she didn’t fulfil it before her death, so should I go on her
behalf?' He said:'Yes, do the pilgrimage on
her behalf – do you see that if your mother had a debt you would have paid it
off, so repay the debt to Allah since Allah is more worthy of it being
fulfilled'”. Here the Messenger of Allah compared the debt to
Allah to the debt of the human and stated that its settlement would suffice. In
this instance, the rule is a confirmation that the settlement of the debt would
suffice.

The rule of the root that is compared with could also
be a disaffirmation as is the case in what is reported on the authority of Umar
(ra) who asked the Prophet about the kiss of the
one who is fasting and whether it breaks the fast. The Prophet then asked,
“What if you rinsed your mouth out with water (while you were fasting), would
that break your fast?” He replied “No” authenticated by Al-Hakim and confirmed by
Al-Dhahabi.Here the Messenger of
Allah compared the kiss of a
fasting person to the rinsing out of one’s mouth in that it does not invalidate
the fast. Hence, the rule in this context is a disaffirmation, in this case the
non-invalidation of the fast.

The meaning of this analogy being based upon a common
factor between the two matters is that the ‘Illah (Shari’ah
reason) of the root is also found in the branch. It is on the basis of this ‘Illah
that the carrying over takes place and this ‘Illah is the common factor
between the compared and the compared with or in other words, between the root
and the branch. An example of this is reflected when the Messenger of Allah was asked about the
purchase of dates by ripened dates: “He
said “Would the Rutab become lighter if it dried?” They said: “Yes.” So he said “In which case, no” (reported by Abu
Ya’la with these words from Sa’d Bin Abi Waqqas and authenticated by Al-Hakim
and Ibn Hibban). Here, the Messenger of Allah asked about the ‘Illah
that exists in the usurious money, which is the increase, and whether it was
also found in the sale of Rutab for dates, and when he knew of its presence,
he confirmed the rule of Riba (usury) for such as type of sale, and so
he (said) “in which case, no”. In other words, it is forbidden to
exchange such commodity as it is because it decreases in weight once it is
dried; thus, the Messenger of Allah asked about the mutual
factor which is the Shari’ah‘Illah of Riba.

This is the definition of Qiyas according to
the Shari’ah. This definition has been obtained from the narrations of
the Messenger of Allah. Ibn Abbas narrated: “A woman came to the Messenger of Allah and said: “O Messenger of Allah,
my mother passed away before being able to fulfil a fast that she had vowed to
Allah. Do I fast on her behalf?” He said: “What if your mother had a
debt and you paid it off would that suffice her?” She said: “Yes.” He said: “Then fast on behalf of
your mother” (reported by Muslim). It is narrated by ‘Abd Allah Bin Al-Zubair
that a man asked the Messenger of Allah: “O Messenger of Allah, my father was an old man when Islam came, and
could not ride an animal, do I perform Hajj on his behalf?” He said: “What if your father had a
debt and you paid it off on his behalf, would that suffice him?” He said:
“Yes.” So he said: “Then do perform Hajj on
behalf ofyourfather” (reported by Ahmad with a chain authenticated
by Al-Zain, and reported similarly by Al-Darimi).

In these two narrations, the Messenger of Allah linked the debt to
Allah (swt) in fasting and in Hajj onto the debt to the human and they are both the
linkage of a known matter upon another known matter, i.e. the association of
the debt to Allah with the debt to the human in confirming that their
settlement on one’s behalf would suffice. This is so because both of these
matters are debts; thus the mutual factor between them is the debt and this is
the ‘Illah and the rule that has been confirmed for both of them is the
sufficing of the settlement. This is the reality of Qiyas according to
the Shari’ah from the Shari’ah text. Therefore, this definition
is a Shari’ah rule that must be implemented and it is the binding rule
of Allah upon the one who deduces it and upon the one who imitates it either as
a Muttabi’ (a Muqallid who queries the evidence) or as an ‘Ammi
(a Muqallid who did not query the evidence). It is like any other Shari’ah
rule, deduced from a Shari’ah evidence, because the Shari’ah
definitions and principles deduced from the Shari’ah evidences are Shari’ah
rules like all other Shari’ah rules.

This Qiyas is based upon the ‘Illah or
in other words upon the common factor between the known linked matter and the
known matter it is linked to; that is, between the root and the branch. Hence,
if the ‘Illah is found, that is if the mutual factor is found between
the compared and the compared with, then Qiyas can be done; otherwise, Qiyas
does not take place at all. This ‘Illah would be considered a Shari’ah
evidence if it were mentioned in a Shari’ah text or if it were analogous
with what is listed by a Shari’ah text because the ‘Illah upon
which the Qiyas is based has been mentioned by Shari’ah.

By contrast, if this ‘Illah were not mentioned in a Shari’ah
text and it were not analogous with that which is listed in a Shari’ah
text, such a Qiyas would not be considered a valid Qiyas, nor a Shari’ah evidence.
This is because the reason upon which it is based has not been mentioned by a Shari’ah
text; thus such Qiyas could not be from Shari’ah and consequently
it cannot be a Shari’ah evidence.

Evidence about this Qiyas being a Shari’ah
evidence is reflected in the fact that the Shari’ah text in which the ‘Illah
is mentioned or analogous with what is mentioned in the Shari’ah text
could either come from the Book, the Sunnah or from the Ijma’ of
the Companions. These three evidences have been confirmed as being Shari’ah
evidences through conclusive proof; thus, the evidence of the Shari’ah‘Illah
is conclusive and that is the evidence of Qiyas. This is so because the Shari’ah
reason found in the rule that is mentioned by the text, which acts as the root,
is what makes the rule in the branch a Shari’ah rule and it is what
makes Qiyas feasible for without it Qiyas would not have existed
in the first place. Therefore, its evidence will also serve as evidence for Qiyas.

This Shari’ahQiyas has been
demonstrated to us by the Messenger of Allah and he considered it a Shari’ah
evidence. The Companions also proceeded according to it and adopted it as a Shari’ah
evidence when they deduced the Shari’ah rules. It has been reported that
the Messenger of Allah said to Mu’ath and Abu
Moussa Al-Ash’ari when he was about to dispatch them to Yemen:
“What will you judge by?” They said: “If we did not find the rule in the Book
or in the Sunnah, we would make
analogy between the two matters and whichever were closest to what is right, we
would act upon it” (mentioned by Al-Amidi in Al-Ahkam and Abu Al-Husain in Al-Mu’tamid).Here
Mu’ath and Abu Moussa explicitly stated that they would use Qiyas and
the Messenger of Allah approved this; therefore this serves as proof that Qiyas
is a Shari’ah evidence.

It is reported on the authority of Ibn Abbas that a
woman came to the Messenger of Allah and said: “My
mother has died and she has a month’s fasting on her neck.” So the Messenger
of Allah said: “What if
your mother had a debt, would you settle it?” She said: “Yes.” Upon this he said: “Then the
debt to Allah is more worthy of being settled” (reported by
Al-Bukhari). Here the Messenger of Allah wanted to teach this
woman so he joined the debt to Allah to the debt of the human in the obligation
of settling the debt and its sufficing, and this is exactly Qiyas
itself. It is reported on the authority of Umar Bin al-Khattab (ra) who asked
the Prophet about the kiss of the
one who is fasting and whether it breaks the fast. The Prophet then asked
“What if you rinsed your mouth out with water would (while you were fasting),
would that break your fast?” He replied “No” (authenticated by al-Hakim and confirmed by
Al-Dhahabi).Here the Messenger of Allah rejected the rule of
invalidating the fast for the act of kissing while fasting by comparing it with
the act of rinsing out the mouth while fasting, which does not invalidate the
fast, because neither of them enters the belly. Thus it was an explanation of
the rule through the use of Qiyas.

In these three texts, the rule was not only given an ‘Illah,
as in the case in many texts that denote Qiyas, rather, Qiyas
itself was also approved, taught and explained through them and this serves as
a valid argument stipulating that Qiyas is a Shari’ah evidence.

This is as far as the Messenger of Allah is concerned. As for
the Companions, it is reported that they used Qiyas as Shari’ah
evidence in several matters. One example is what has been narrated by Said Bin
Mansur in his Sunan from Al-Qasim Bin Muhammad “ A man died and left
behind his two grandmothers, his mother’s mother and his father’s mother, and
so Abu Bakr came and gave the mother of his mother a sixth and left the mother
of his father, and so a man from the Ansar said to him: “You gave the inheritance
of a dead man to a woman who if she had died, the same man would not have
inherited her; and you excluded the woman whom the man would have inherited all
her legacy had she been the one who died”, and so he divided the sixth between
them” . This event was also mentioned by Al-Ghazali in Al-Mustasfa
and Al-Amidi in Al-Ihkam. Here, the Companions compared the inheritance
of the living from the dead with the inheritance of the dead to the living by
assuming that the dead was living and the living was dead; thus, concluding
that the mutual factor - the kinship between the two persons - is the same in
both instances. When Abu Bakr heard this Qiyas, he submitted to it,
implemented it and retracted from his own opinion.

Similar to this is what was reported that Umar (ra)
wrote to Abu Musa Al-Ash’ari saying: “Get acquainted with the similar and the
identical matters and then make analogy between the matters according to your
opinion” (This was mentioned by Al-Shirazi in Tabaqat Al-Fuqaha’ and was narrated
by Al-Bayhaqi in Al-Ma’rifa Min Kitab Adab Al-Qadi).Umar (ra) was the Amir of the believers while Abu Musa was a judge
in this instance. Similarly, it was said to Umar (ra) that Samra had taken wine from Jewish
traders as tithe which he then turned into vinegar and sold so Umar (ra) said: “May
Allah damn Samra, did he not know that the Messenger of Allah say: “May Allah curse the Jews;
fats have been made unlawful to them, so they embellished them and sold them
and ate from the proceeds” (reported by Muslim).Here, Umar (ra) compared
wine with fat and concluded that its prohibition stipulates the prohibition of
its sale. Another example is when Umar (ra) was not sure about the penalty of
the seven who took part in the killing of one man so ‘Ali (ra) said to him: “O
Amir of the believers! What if a group of people were to take part in a theft,
would you cut their hands?” He said: “Yes.” So ‘Ali said to him: “So likewise” (mentioned by
‘Abd Al-Razzaq in Al-Musannaf).This is a Qiyas between the killing and the theft, and
all this indicates that Qiyas is Shari’ah evidence deduced from
the Sunnah and the Ijma’ of the Companions. Hence, what has been
confirmed through the Messenger of Allah is the Sunnah
and what has been confirmed through the Companions is considered an “Ijma’ Sukuti” (Silent Consensus)because the Companions who
utilised Qiyas did so in the presence and the full knowledge of the rest
of the Companions, and none of them condemned it; therefore, it was a general
consensus.

However, the Sunnah and the Ijma’ of the
Companions have both been reported by way of individual report (Ahad
narrations), thus they are considered as indefinite evidence. Therefore, the
conclusive evidence about the fact that Qiyas is a Shari’ah
evidence is reflected in what we mentioned with regard to the Illah
being mentioned in the Shari’ah text, that is, in the Book and the Sunnah
or in the Ijma’ of the Companions. These three evidences have been
confirmed as being Shari’ah evidences by way of conclusive evidence.
Therefore, they act as the evidence for Qiyas because they are the
evidence for the Illah.

It has been conclusively established that these four
evidences, the Book, the Sunnah, the Ijma’ of the Companions and Qiyas
have come by way of Revelation from Allah (swt). Apart from these four, no
other evidence has been established through conclusive evidence. The fact that
they are not established by conclusive evidence is clear since those who use
them as evidence do not claim that the proof that they are Shari’ah
evidences is a definitive proof. The
fact that they are not confirmed as (decisive) Shari’ah evidences is
clear from the lack of conformity of the evidences which they bring forward –
in their consideration as Shari’ah proofs – upon the issue that they are
trying to establish the evidence upon. In other words, it is clearly apparent
that there is a mistaken inference in what they present from the evidences upon
what they are claiming, such as: the consensus of the Muslims, Al-Masalih
Al-Mursalah or Al-Istihsaan and similar to them from the Shari’ah
evidences.

So, those who claim that the consensus of the Muslims
is a Shari’ah evidence draw their conclusion from the words of the
Prophet : “My Ummah will not gather upon a misguidance”.
Ibn Hajr mentioned the narration as being Mashhur with many different
paths, though all of them have debate around them, and in any case, this does
not contain a proof since the misguidance here means apostasy from the Deen
and not mistakes and with this meaning it was mentioned in the narration: “My
Ummah will not gather upon a misguidance (Dalalah), and so stick to the group
(Jama’at), since the Hand of Allah is with the group” (reported by
Al-Tabarani with a chain whose men are all trustworthy through Ibn Umar). This
is correct since the Islamic Ummah would never unite upon apostasy from
Islam. However, they could possibly unite upon a mistake and the simplest
evidence for that is that the Islamic Ummah united upon leaving behind
the work to establish the Khalifah for a long period and that was
consensus upon a mistake.

With respect to those who say that seeking the
benefits and repelling the harms is a Shari’ahIllah for the Shari’ah
rules and apply Qiyas accordingly, they infer this by the words of Allah
(swt): “And we did not send you except as a Mercy to the ‘Aalameen
(mankind and jinn and all that exists)” (TMQ 21:107). So, they consider the
fact that he is a mercy as a Shari’ahIllah, and there cannot be mercy except through the attainment of the
benefits and the repulsion of harm, and therefore, it is a Shari’ahIllah
for the legislation. This inference is incorrect from two angles; the first is
that the subject was his being sent, or in other
words, the fact he was a Messenger, and
not the Shari’ah laws. If we submit that the intention of sending him was his message i.e.
the Shari’ah, the subject would be the whole of Shari’ah from the
matters of ‘Aqidah and rules collectively and not the Shari’ah
rules alone. The second issue is that the fact that sending him as a mercy for the
universe is only a clarification for the Hikma (wisdom) behind sending
the Prophet ; in other words, what would occur as a consequence of sending
him. In the same manner, the words of
Allah (swt): “And we did not create Jinn and Mankind except to worship” (TMQ 51:56),
in other words, the result of creating them would be the worship so it is the Hikma
of their creation and not the ‘Illah for their creation. Likewise His
(swt) words: “That they may witness things that are of benefit to them” (TMQ 22:28).
The verse describesthe Hikma from the Hajj, that is, the
result that may be gained from the Hajj. His Words,“Truly prayer prevents
great sins and Munkar” (TMQ 29:45), describe the Hikma for
the prayer; in other words, the result that may be reached from prayer and so
on. So, the verse here is not in the context of specifying an Illah
because the Illah is the thing that due to its presence the rule is
found or, in other words, is legislated. In order to understand the underlying Illah
in the text, it is imperative that it must be an attribute and this attribute
must indicate the underlying ‘Illah, in that it is the Sabab (reason/cause)
for the legislation or in other words that the legislation was for its sake,
and in such a circumstance it is an inseparable attribute which is never absent,
since the cause always results in the effect and therefore if the Illah
is found then the effect is found.

The words “mercy for the ‘Aalameen” (TMQ 21:107)and the rest of the previous verses, even if they are considered
as attributes and within the verses are the letters that would indicate an
underlying Illah, the context of the words does not indicate the
existence of an Illah because they could be absent and because the
legislation was not for its sake. Accordingly, the Islamic Shari’ah
could be a mercy for the one who believes in it and who acts according to it,
such as: the first generations of Muslims, and it could be an affliction for
whoever disbelieves in it, such as the disbelievers. So, the sending of the
Messenger is an affliction upon
the disbelievers and they are from the ‘Aalameen. Additionally, the
Islamic message is present today. This is since the sending has practically
taken place and with that the Muslims who themselves believe in that message
are today in hardship. So, it is not the sending alone, that is the existence
of the Shari’ah alone, that is a mercy, and for that reason it is not an
Illah for it. Based upon that, attaining the benefits and repelling the
harms is not a Shari’ahIllah; so, it is not taken as a basis for
Qiyas.

As for those who say that rationality is from the
Islamic evidences, we say that the discussion is about the Shari’ah rule
or what is considered, with the most probability, as the rule of Allah. This is
not present except in what came by Revelation, and the Revelation did not
mention the rationality, and for that reason, there is no evidence whether
conclusive or inconclusive to be found that states that rationality is from the
Shari’ah evidences for the Shari’ah rules; so it is not
considered to be from the Shari’ah evidences at all.

With respect to those who say that the opinion of the
companion is from the Shari’ah evidences, they deduce this by saying
that the two evidences for the Ijma’ of the Companions are evidences for
the single companion as well, since the praise for them (collectively) is also
praise for one of them. In the same manner, since there cannot be shortcomings
in their conveyance (of the Deen) collectively, there can be no doubt
with respect to the conveyance of one person from amongst them. Additionally,
the words of the Messenger of Allah , “My companions are like stars, whichever of them you
follow you are guided”, support the opinion of a companion being an
evidence. This deduction is incorrect since the praise of the Prophet for the companions
collectively not individually is a proof that the Ijma’ of the
Companions is a Shari’ah evidence and the fact that the Companions did
not convey the Quran individually is a proof that their consensus is a Shari’ah
evidence. Rather, the Shari’ah evidence is the praise upon them and the
fact that they collectively agree that a rule is the Shari’ah rule. So
the evidence is two matters, praise and consensus and these are not found in
the individual companion. In which case, the issue of praise and the conveyance
of the Quran are not suitable to be proofs that the words of whoever conveyed
the Quran from those whom Allah (swt) praised are Shari’ah evidences
because in the same manner that Allah (swt) praised the Companions, He (swt)
also praised those who followed them, and since the conveyance of the Quran
even if by those whom Allah (swt) has praised does not make the words of the
one who conveyed it a Shari’ah evidence, and due to that the inference
made is invalid. What indicates the invalidity of this inference is that what
an individual companion conveyed and what he narrated from the narrations is
not considered to be definite – rather it is indefinite. Therefore, “The
old man and woman if they commit fornication then stone them both” is
not considered to be a verse from the Quran even though it was conveyed by a
companion since there was no Ijma’ upon it. In the same manner, the
narrations that are transmitted by the Companions from the singular reports are
not considered definite - rather they are indefinite.

This is different from the Ijma’ of the
Companions since what they agreed upon unanimously as being from the Quran is
considered to be Quran and to be definite, and what they agreed upon
unanimously in terms of narrations and were transmitted from them by Mutawatir
(successive multiple chains) are considered to be definite evidences.
Accordingly, the difference is vast between what the Companions agreed upon
unanimously - where there is no disagreement, meaning it is definite and the
one who denies it is a disbeliever - and what the single companion narrated
which is indefinite and the one who denies it is not considered to be a
disbeliever. Therefore, Ijma’ of the Companions is Shari’ah
evidence whereas the opinion of the individual companion is not considered to
be from the Shari’ah evidences. In addition to that, contrary to the Ijma’
of the Companions who do not agree upon a mistake, the individual companion can
make mistakes and he is not free from them. The Companions used to differ over
issues and each of them adopted a different opinion from the other; so, if the
opinion of the companion were a proof then the proofs of Allah (swt) would be
in disagreement and contradictory. Therefore, the opinion of a companion is not
considered to be Shari’ah evidence.

As for those who say “the Shari’ah of those
before us is Shari’ah for us”, they use the following words of Allah
(swt) as evidence: “Truly We have sent the revelation to you as We sent
the revelation to Nuh” (TMQ 4:163), “He (swt) has ordained
the same Deen for you that He ordained for Nuh” (TMQ 42:13) and His (swt) words “Then,
We (swt) have sent the revelation to you (O Muhammad saying) Follow
Millat Ibrahim” (TMQ 16:123).

These verses indicate that we are addressed by the
legislation of the previous Prophets. In addition, the very duty of the
Messenger is that he came to
inform about what Allah (swt) has obliged us to adhere to. Due to that, every letter in the Quran and
every action that emanated from the Prophet , any word that he pronounced or any confirmation from him
must be adhered to except what was mentioned as being specific to him or other
than him. So we are ordered by everything that is mentioned by the Quran or by
narration except when a Shari’ah text comes to explain that it is
specific to the Companions of the previous Shara’ih (plural of Shari’ah),
and we are ordered by whatever has not mentioned in such a manner since Allah
did not mention it in the Quran without reason and, therefore, we must be
addressed by it.

This inference is incorrect. With respect to the
verses, the intention of the first verse is that revelation is sent to him in the same way it was
sent to other Prophets, and the purpose of the second verse is that the basis
of Tawheed (belief in Oneness of Allah(swt)) was legislated and that was
what Nuh was ordained with. The intended meaning of the third verse is to
follow the root of Tawheed since the word “Millat” means: the
root of Tawheed. All the verses
from this type are in this manner, such as His (swt) words: “So follow
their guidance” (TMQ 6:90)and other verses. As for His (swt)
words “Truly, We did send down the Taurat, therein was guidance and
light, by which the Prophets judged” (TMQ 5:44), Allah (swt) by this meant
the Prophets of the Tribe of Israel and not Muhammad , and the Muslims only have one Prophet. As for what is
narrated from Abu Hurayrah that the Messenger of Allah said: “The
Prophets are brothers from Allat (i.e. different mothers), they have various
mothers and their Deen is one” (reported by Muslim),the meaning
of “their Deen is one” is the Tawheed
which is the basis that none differed upon. It does not mean what was sent from
the Deen is one with all of them
since we understand the opposite from His (swt) words: “And for each from
you We have prescribed a law and a clear way” (TMQ 5:48). From this, it becomes clear
that these evidences are not suitable to be inferred from, and the inference
from them to prove that the Shari’ah from before us is a Shari’ah
for us is incorrect.

On the other hand, there are evidences that decisively
forbid the following of the Shari’ah of those before us whether it came
in the Quran, the Sunnah or not
in both. Allah (swt) said: “And whoever seeks a Deen other than Islam, it
will never be accepted of him” (TMQ 3:85)and Allah (swt)
said: “Truly the Deen with Allah is Islam” (TMQ 3:19). So, when there is a Shari’ah
text stating that for anyone to embrace any Deen
other than the Deen of Islam is
conclusively not accepted, then how can it be requested from the Muslims to
follow it? Allah (swt) says: “And We have sent down to you the Book in
truth, confirming the scripture that came before it and supreme over it” (TMQ 5:48),
the supremacy of the Quran over the previous Books does not mean that it was a
confirmation for them since it is said in the same verse “confirming”
and so it rather means that it is an abrogation of them. Also, there is an Ijma’
that the Shari’ah of Islam is an abrogation for all the previous Shara’ih.
More than that, Allah (swt) says: “Or were you witnesses when death
approached Ya’qub? When he said to his sons: ‘What will you worship after me?’
They said ‘We shall worship your God, the God of your fathers Ibrahim and
Ismail and Ishaq, One God, and to Him we submit (as Muslims) * That was an
Ummah that has passed away. They shall receive the reward of what they earned
and you of what you earn. And you will not be asked about what they used to do”
(TMQ
2:133-4). So, Allah (swt) informs us that He will not ask us about what
those Prophets did, and if we are not accounted about their actions, then we
will not be accounted about their Shari’ah since conveying it and
working according to it is from their actions. What we are not accountable for,
we are not commanded with it and it is unnecessary for us. Additionally, it is
narrated from Jaber that the Prophet said: “I have
been given five that no one before me was given; each Prophet was sent to his
people specifically and I have been sent to each Red and Black (that is, the
whole of mankind)” (Reported by Muslim) and from Abu Hurayrah that the
Prophet said “I have been
preferred over the Prophets by six”
(reported by Muslim), and then he mentioned them and
amongst them was “And I was sent to all of the Creation”. Hence,
the Prophet has narrated that every
Prophet before our Prophet was only sent
specifically to their people; so, he was not sent to other than his people and
they were not obliged by the Shari’ah of a Prophet other than their own.
Therefore, it is confirmed that no one from the Prophets were sent to us and so
their Shari’ah cannot be a Shari’ah for us. This is supported by
what is mentioned clearly in verses from the Quran “And to Thamud their
brother Saleh”, “And to ‘Aad their brother Hud”, “And to Madyan their brother
Shuaib” (TMQ 11:50, 61, 84).

From all this, it is clear that the Shara’ih of
those who came before us is not Shari’ah for us for three reasons: the
first of them being that the proofs used as evidence only indicate the basis of
Tawhid and do not indicate that all of the Shara’ih of the
Prophets is one. Secondly, the Shari’ah texts which mention the
prohibition of following any Shari’ah other than the Shari’ah of
Islam, and thirdly every Prophet was sent to his people specifically and we are
not from his people so he is not a Messenger for us. We are, therefore, not
addressed by his Shari’ah and are not bound by it. In that case, the Shari’ah
of those before us is not considered from the Shari’ah evidences.

This is with regards to their use of the verses as
proof. However, with respect to their inference that the Messenger came to convey from
Allah everything that must be adhered to, this is correct as to what he
informed us that we must adhere to from Allah which is the Shari’ah that
he came with. However, it is not correct (their inference) with respect to what
he did not order us to
adhere to. So, the Prophet conveyed to us from Allah (swt) about the
circumstances of those before us from the previous nations, but he informed us
of that for the sake of example and admonition and not for us to be bound by
their Shari’ah. So, the stories of the Prophets, as well as their
affairs and the affairs of their nations, were narrated to us and their
circumstances and what rules they used to follow were made clear to us. In
addition, all of that was only for the sake of example and admonition and
nothing else and it was not in order to be bound by their Shari’ah.

With respect to the stories and to the news (akhbaar),
it is apparent that they came for admonition and lessons and this does not need
any proof, and as for the conditions of the nations and what they used to
follow in terms of rules, this was mentioned in way of reports about them and
they were not mentioned from the perspective of being bound by them. They are
like stories that came to explain the circumstances of the previous Prophets
and the previous nations.

Above and beyond this, several of these rules
contradict the Islamic Shari’ah in their details; therefore, if we were
addressed by them, we would have been addressed by two different Shara’ih
and this is not possible. As an illustration from the legislation of Sulayman,
Allah (swt) said:“He inspected the birds and said
‘What is the matter that I see not the hoopoe? Or is his among the absentees? I
will surely punish him with a severe torment, or slaughter him, unless he
brings me a clear reason”
(TMQ 27:20-1) and there is no
difference amongst the Muslims regarding the prohibition of the punishment of
the bird and even if it was disobedient; rather, there is no difference even
regarding the invalidity of punishing any animal and there are Shari’ah
texts that came regarding this. The Prophet (saw) said: “The beasts
damage is Jubaar” (agreed upon through Abu Hurayrah); it is mentioned
in Al-Muheet dictionary: “The Jubaar is like the cloud
which destroyed the cowardly, and Jubaar is loss and invalid”.
Therefore, the damage caused by livestock, as well as the bird, is not
indemnified (i.e. the owner is not liable).

With respect to the Shari’ah of Musa, Allah
(swt) says: “We forbade them every (animal) with undivided hoof and We
forbade them the fat of the ox and sheep except what adheres to their backs or
their entrails, or is mixed up with a bone” (TMQ 6:146),and in the Shari’ah
of Islam all of that has been made permitted for the Muslims by His (swt) word:
“and your food is permitted for them” (TMQ 5:5),and this fat
is from our food so it is permitted for them. The words of Umm Maryam in the
Quran, “I have vowed to you what is in my womb to be dedicated to Your
services” (TMQ 3:35), are part of the Shari’ah of the people at the
time of Zakariyyah and this is not permitted in Islam in origin. The words,
“Every food was permitted for Bani Israi’l except what Isra’il forbade upon
herself” (TMQ 3:93),are part of the Shari’ah of
Ya’qub and in Islam it is not permitted to prohibit oneself from what Allah
(swt) allowed; He (swt) says: “Why do you prohibit what Allah made
permitted for you” (TMQ 66:1). The Shari’ah of the People of the Book
at the time of the companions of the Cave includes, “The ones who won
their point said verily we shall build a place of worship over them” (TMQ 18:21),and this is prohibited in Islam; the Prophet said “Truly,
those who if a good man died from amongst them would build a place of worship
over his grave are the most evil of creation” (agreed upon).

Part of the Shari’ah of Musa are the words “And
We ordained therein for them Life for Life, eye for eye, nose for nose, ear for
ear, tooth for tooth and wounds Qisaas (equal for equal)” (TMQ 5:45),
while we do not take from this because we are not ordered with it and only other
than us were ordered by it. Islam only obligated us with retaliation from all
of these and in other issues by His (swt) words: “So whoever transgresses
against you then transgress likewise against him” (TMQ 2: 194),
His (swt) saying, “And if you punish, then punish them with the like of
that which you were afflicted” (TMQ 16:126) and His (swt) words “The
recompense for an evil is an evil like thereof” (TMQ 42:40).In addition,
His (swt) words “and wounds Qisas” (TMQ 5:45) conflicts with Qisas (recompense)
in Islam since the Qisas in Islam is the fine, and there is nothing in
the Torah about accepting the fine. Rather, the fine is only in Islamic law and
the fine is the blood money; so, the blood money for what falls short of life
is called the fine. Likewise, many rules about Qisaas in the stories
that have been narrated about the previous Prophets and nations, explaining
their circumstance and what they used to follow from laws, contradict the laws
of Islam; so how can we be addressed by them?

It cannot be said that these laws have been abrogated
by the Islamic Shari’ah since they were narrated without restriction and
the laws which have come to us did not come as abrogation for laws before us.
Rather they came as a Shari’ah for us and there is no relationship
between these laws. Accordingly, the issue of abrogation is not found and the
call regarding it is a claim that has no backing since abrogation is the
nullification of the rule which is understood from a previous Shari’ah
text by a subsequent one, such as the words of the Messenger : “I used to prohibit you from visiting the graves so
visit them” (reported by Muslim through Buraydah), and the report of
Al-Rabi’ in his Musnad through Ibn Abbas, “I used to prohibit you
from visiting the grave, so visit them”:therefore, the
nullification and raising of the previous rule by a subsequent Shari’ah
text is abrogation. Therefore, for abrogation to take place there must be an
abrogated rule that was revealed before the abrogating rule, and for an
indication to be present in the abrogating text that it is an abrogation for
that rule, and anything other than this is not considered to be abrogation. The
mere difference between two rules or contradiction between them does not make
one of them an abrogation for the other; rather, there must be an indication in
the abrogating text which indicates that it is an abrogation for a specific
rule. Accordingly, these rules, narrated from the previous Shara’ih, are
not abrogated by the rules of Islam which differs with them or contradicts them
since there is nothing which indicates that. Furthermore, there is no
relationship between them and the rules of Islam in legislation; so, they are
abrogated by the abrogation of the previous Shara’ih by the Shari’ah
of Islam and not by laws specific to them that came to abrogate them. With
this, it is clear that the inference that we are addressed by what the
Messenger came with and are
restricted by it as being an invalid inference since we are addressed by what
came to us with him from the legislation of
Islam and restricted by that, and we are not addressed by what he related to us
from the stories of the previous Prophets and their narrations, and neither are
we addressed by what he explained to us from the circumstances of the previous
nations and what laws they used to follow. Accordingly, it has become apparent with clarity that the
legislation of those before us is not legislation for us and the invalidity of
considering it being from the Islamic evidences is also apparent.

However, if another Shari’ah text is found with
the laws from the Shari’ah of those before us which indicates that we
are addressed by them, then, in that case, this rule would become found in the
Book or in the Sunnah, and alongside it a Shari’ah text would be
found that indicates that we are addressed by it in our Shari’ah and the
address of the Legislator (swt) for us existed there which indicates that it is
for us and so it would be obligatory to take action upon it then. However, this
would not be because it was a Shari’ah of those before us but because of
the address found in the same rule that is for us; in other words, because
Allah (swt) addressed us by it and the Messenger informed us that it was
from the Shari’ah which he had come with, i.e. the laws of Islam.

It becomes apparent to the one who follows the laws
that have come in the Book, the Sunnah and the previous Shara’ih
that the text that comes indicating that we are addressed by it, that it is
from our Shari’ah, could come in three circumstances:

Firstly, when the verse which the rule came with
begins by directing the address towards us such as the verse regarding Kanz (hoarded
wealth), Allah (swt) says: “O you who believe! Truly there are many of
the rabbis and monks who devour the wealth of mankind on falsehood, and hinder
(them) in the way of Allah. And those who hoard up gold and silver and spend
them not in the way of Allah, announce unto them a painful torment” (TMQ 9:34).
Allah (swt) has addressed us with this verse; so, whatever it mentioned is a Shari’ah
for us. Accordingly, Kanz is prohibited in our Shari’ah even
though part of the verse that prohibited it was explaining the circumstances of
the rabbis and monks.

Secondly, when the verse which
came with the rule has come with a word which indicates generality, such as the
verses which mention ruling by other than what Allah has revealed. Allah (swt)
says “And whosoever rules by other than what Allah has revealed then such
are the disbelievers” (TMQ 5:44).So, the word
“whosoever” indicates generality and this means that it encompasses us and thus
we are addressed by it. Similarly, Allah (swt) says: “And whosoever rules
by other than what Allah has revealed then such are the oppressors” (TMQ 5:45),and
in the same way “And whosoever rules by other than what Allah has
revealed then such are the sinful ones” (TMQ 5:49).

Thirdly, if the verse ends with
something that draws our attention to the laws which are within it, such as the
verse of Qisas where Qarun was mentioned; Allah (swt) says: “Truly
Qarun was one of Musa’s people, but he behaved arrogantly towards them. And we
gave him of the treasures, that of which the keys would have been a burden to a
body of strong men” until His (swt) words: “Know you not that the
disbelievers will never be successful” (TMQ 28:76-82). This verse is followed
directly afterwards by His (swt) words: “That home of the Hereafter, We
shall assign to those who do not want grandeur in the land nor do mischief. And
the good end is for the Muttaqun” (TMQ 28:83), and so the verses became
an address to the Messenger and to the believers.
This draws attention to the laws which came (within them) when it is said: “those
who do not want grandeur” and these were rules regarding Qaroon who
wanted grandeur in the land but there is what indicates that we are addressed
by these laws.

In these three circumstances,
laws of the verses of previous people will be considered as laws from the
Islamic Shari’ah since there is something that indicates that we are
addressed by them and we adopt them in their characteristic as laws from the
Islamic Shari’ah and not from the characteristic that they were from a Shari’ah
of those before us since the Shari’ah of those who came before us is not
a Shari’ah for us.

With regards to those who say
that Istihsaan (application of discretion in a legal decision) is from
the Shari’ah evidences, they are not able to come with single or even
indefinite evidence from the Shari’ah that supports their claim. Istihsaan
can be explained by those who take it as a Shari’ah evidence that: it is
evidence which occurs to the Mujtahid when he or she is unable to make
it apparent due to the lack of help to express it. It is also explained that it
is to leave an aspect from amongst the aspects of Ijtihad without the completeness of the words for another aspect
which is stronger than it and which would be like an unexpected factor on the
first. In the same manner, it is explained that it is in an issue to abandon
the rule comparable to it to another rule due to a stronger aspect that
necessitates this move. Additionally, it is explained that it is to cut off an
issue from comparable ones.

Istihsaan is divided into two categories;
the first is Istihsaan Qiyasi and the second is Istihsaan of
necessity. Istihsaan Qiyasi is to abandon the rule of an apparent Qiyas
that comes to fore for a different rule by another Qiyas which is more
subtle and hidden, but is a stronger proof, with a more satisfying viewpoint
and a more correct derivation. An example of this is: if a person bought a car
from two people in one agreement as a loan from them. Then, one of the two
creditors was given part of this debt. However, he didn’t have the right to take it specifically;
rather, his partner in the debt has a right to claim his part of the receipt
since he (the first creditor) has appropriated it from the combined sale price
in the single sale. Moreover, the appropriation of either of the two partners
from the price of the combined sale between them is the appropriation of both
the partners, in other words, it is an appropriation for the partnership and it
is not for either of them to take specifically. So, if whatever was taken is
destroyed while it is in the possession of the one who received it before the
second partner took his share from it, then the deduction from the Qiyas
is that it would be taken away from the total sum of the two, or in other words
from the total sum of the partnership. However, in Istihsaan the loss
would be considered to be taken only from the one who had received it and the
loss would not be counted against the second partner according to Istihsaan
since in origin he is not inseparable from the partnership of the one who
received it; rather, he is able to leave what is received by the appropriator
and become attached to the debtor by himself specifically. The other examples
follow in the same manner. This is Istihsaan Qiyasi.

As for Istihsaan of
necessity, it is what contradicts the rule of Qiyas by taking into
account an incumbent necessity or a required benefit in order to fulfil the
need or prevent the hardship. This occurs when the rule from the Qiyas
leads to a hardship or a problem in some issues and so it is abandoned at that
time by Istihsaan for another rule which would remove the hardship and
repel the problem. This is like the example of the employee since his
possession with respect to what he is employed upon is considered to be an Amanat
(trust); so there is no liability (to be paid) if it is damaged while it is
with him as long as he was not negligent. Therefore, if someone employed a
person to work in his house to sew clothes for someone else for one month, he
is considered a private employee. Then, if the clothes were damaged while they
are in the employee’s possession without any transgression from him, there is
no payment of liability because he possessed it as a trust. Additionally, if someone
employed someone to work in his shop to sew clothes for others and he used to
sew clothes for all the people, then he is a general employee. So, if the
clothes are destroyed while they are in this employee’s possession without any
transgression from him then there is no liability since he held them as a trust
in the same manner. However, according to Istihsaan, there is no
liability upon the private employee while there is for the general employee so
that he (the general employee) would not accept more work than he is able to do
since he might destroy the peoples’
wealth.

This is the summary of Istihsaan
and its evidences. It is apparent that they are not evidences; rather, they are
simply rational amendments that are neither from the Book nor from the Sunnah.
They do not even reach the level of being considered indefinite proofs let
alone conclusive proofs that Istihsaan is from the Shari’ah
evidences. This is from one angle and from another angle; whatever comes about
from rational amendment is void.

With respect to the explanations
of Istihsaan, all of them are invalid. As for the first explanation that
the evidence is sensed in the mind of the Mujtahid and that he or she
does not know what it is, it is not permitted to consider something an evidence
as long as it remains unknown since the lack of ability to make it clear and
apparent proves that it is not clear to the Mujtahid
and that he or she lacks knowledge of it; so, it is not correct to be from
amongst the Shari’ah evidences. As for the other explanations, all of
their meanings are the same, i.e. to abandon similar issues to the issue at
hand for another stronger view, in other words, to abandon Qiyas for stronger
evidence. If these explanations intend by the “stronger evidence”, a text from
the Book or the Sunnah, then this is not Istihsaan; it is rather preference of the text,
so it is deducing from the text which would be deduction by the Book or the Sunnah
and not deduction by Istihsaan. If the “stronger evidence” is the mind
by what it considers as benefit and this is the intended meaning, then this is
invalid since Qiyas is built upon the Shari’ah‘Illah
which is determined by the text and it is the address of the Legislator (swt)
to us. The mind and the benefit are not Shari’ah texts and nor are they
another ‘Illah stronger than the text; rather, there is no relationship
between the mind and benefit with the Shari’ah text (i.e. what came as
Revelation). For that reason, this abandonment is invalid.

This is regarding the
explanations. As for the categorisation of Istihsaan, the invalidity of Istihsaan
Qiyasi has become clear from the invalidity of the second explanation,
which was to abandon the similar issues to the issue. Also, their consideration
that it is a hidden Qiyas is invalid because it has no relationship with
Qiyas; rather, it is simply reasoning by benefit (making the benefit an ‘Illah).
Regarding the example of the price of a combined sale which was sold in one
agreement, it is not correct to differ in the rule, theloss of the wealth which one of the two partners
appropriated, that it is a loss from the wealth of the partnership, for what
one of the two partners appropriated from the wealth is from the appropriation
of the partnership. Because the wealth, irrespective of whether it was the sold
car or its price, is the wealth of the partnership and not the wealth of one of
the partners; so its loss is the loss of the wealth of the company just like
its appropriation is an appropriation of the wealth of the company. So, this
beneficial (Maslahi) abandonment has no place and it contradicts the Shari’ah.

As for the Istihsaanof
necessity, its invalidity is clear in that it is ruled by the mind and what
the mind perceives as benefit; it is not a Shari’ah text and the adopted
reason (‘Illah) is preferred to the Shari’ah text (that is, the
comprehension of Shari’ah text). All of this is invalid without any
necessary discusssion. Then, to make the shared employee liable and the private
employee not liable is to prefer something without evidence to make it
preferred and it contradicts with the Shari’ah text. It was reported by Al-Bayhaqi in Sunan
Al-Kubra from ‘Amr B. Shu’ayb from his father from his grandfather that the
Messenger said: “then there is no liability upon the
one who takes a trust”. Similarly, through Al-Qasim Bin Abdul Rahman
that ‘Ali and Ibn Mas’ud said: “there is no liability upon the one who takes a
trust”, and in his Sunan Al-Bayhaqi reports from Jaber that Abu Bakr
ruled that a deposit which had been kept in a bag, which was burnt and so was
destroyed, was not to receive any liability in exchange; so, there is no
liability upon anyone given a trust at all since the expression of the
narration “no” is a negation of the genus (no liability) which indicates
generality, and so it encompasses every one holding a trust whether they were a
private employee or a general employee.

By this it is apparent that Istihsaan
is not from the Shari’ah evidences, and it is not correct to consider it
from the Shari’ah evidences since there is no proof at all, definite or
indefinite, whether from the Quran, from the Sunnah or from the Ijma’
of the Companions that indicates that it is from the evidences. This is besides
the fact that it is using the mind as evidence which makes it invalid and that
some of its examples contradicts Shari’ah texts.

As for those who say that
Al-Masalih Al-Mursalah are from the Shari’ah evidences, in the same
manner they are also unable to bring any proof for it; however, they consider
the reasons behind the whole of the Shari’ah to be the obtaining of
interests and the repulsion of harms. In the same way, they consider the reason
behind each specific Shari’ah rule to be the obtaining of the interest
or the repulsion of the harm. However, some of them make it a condition that
the consideration that something is itself a benefit needs to be found
mentioned in a text from the Shari’ah or mentioned that it is a type of
interest but some of them do not make this a condition; rather, they consider
the Maslahah (benefit) a Shari’ah evidence even if there is no
mentioning of the consideration of it or its type in a Shari’ah text.
This is because it comes under the general Masalih by which the benefits
are sought and the harms are avoided.

Al-Masalih Al- Mursalah may be defined as: every
interest which has no text narrated in the Shari’ah with respect to it
or its type. So, the meaning of Mursalah is that it is not mentioned in
evidence. They said that if the Maslahah was itself mentioned in a
specific text, such as teaching, reading and writing, or was from a general
text which mentioned its type which confirmed its consideration, such as the
enjoining of every type of good and the forbiddance of all the acts of evil, then
in these two situations it is not considered to be from Al-Masalih
Al-Mursalah. Rather, Al-Masalih Al-Mursalah is forwarded from the
evidence, in other words, there is no evidence found upon it; instead, it is
derived from the generality of the Shari’ah being sent to gain the
interests and repel the harms. However, there is a difference made between the Shari’ah
interests and those which are not legitimate since the Shari’ah
interests are those that agree with the intentions (Maqasid) of the Shari’ah,
and the interests that are illegitimate are those which contradict the
intentions of the Shari’ah. So, Al-Masalih Al-Mursalah that are
considered to be a Shari’ah evidence are those which agree with the
intentions of the Shari’ah, and those which contradict with the
intentions of the Shari’ah are not considered to be from Al-Masalih
Al-Mursalah; consequently, it is not a Shari’ah evidence. Hence, Al-Masalih
Al-Mursalah are those that the Shari’ah texts indicate its
consideration in a general manner, and accordingly, specific Shari’ah
rules are built upon its basis when there is no Shari’ah text regarding
the event or anything which is comparable to it, in which case the interest
would be the Shari’ah proof.

This is the summary of Al-Masalih
Al-Mursalah and it is invalid from two angles:

Firstly: the Shari’ah
texts from the Quran and the Sunnah are connected to specific actions of
the worshipper; so, they are the Shari’ah evidence for the rule of the Shari’ah
in that action, and they are not connected with the interests and no evidence
came for the interest. When Allah (saw) said: “Let there be a pledge
taken” (TMQ
2:283), and when He (swt) said: “O you who believe when you
contract a debt for a fixed period write it down” (TMQ 2:282),
and when He said: “Take witnesses whenever you make a commercial
contract” (TMQ 2:282),He
(swt) was explaining only the rules of mortgaging, writing down debts and
witnessing the sale. He (swt) did not make it evident whether this was an
interest or not, neither by expression nor by indication, and the text does not
convey whether this rule was an interest or not, neither from close nor far or
by any aspect from its various angles. So, from what angle is it said that
these interests are indicated by the Shari’ah in order for this interest
to be considered and subsequently to be considered as Shari’ah evidence?

Additionally, the Shari’ahIllal (plural of Illah) came in the same manner as the Shari’ah
texts; connected to the actions of the worshipper and as evidence upon the indication
of the Shari’ah rule in that action, and did not come to explain the
interest nor the indication of the interest. So, when Allah (swt) says: “in
order that it may not become a fortune used by the rich among you” (TMQ 59:7),
“so that there may be no difficulty to the believers in respect of the
wives of their adopted sons” (TMQ 33:37)and when He (swt)
says: “to attract the hearts of those who have been inclined” (TMQ 9:60), He
(swt) is only clarifying the ‘Illah distributing the wealth amongst the
poor rather than the rich in order to prevent the circulation of the wealth
amongst the rich, and clarifying that the ‘Illah of marrying the
Messenger to Zaynab is to be an
explanation of the permissibility for
someone to marry his adopted son’s wife, and clarifying that the Illah
for giving (money) in order to attract the hearts is the need for the State to
bind the hearts together. So, He (swt) did not explain that this was benefit;
rather, the explanation was that a specific issue was the Illah of a
specific rule without any regard given to the interest or its absence and
absolutely without any consideration to it. So, from what angle then, can it be
said that the Shari’ah indicates these reasons such that the interests
can be considered Shari’ah evidence? If the Shari’ah texts did
not indicate that the Shari’ah came for the interest, neither in its
indications upon the rule nor in its indications for the Illah of the
rule, then it is not possible for it to be said that the texts indicate
specific interests or by their type since nothing at all came regarding this in
the Shari’ah texts. Accordingly, the invalidity of the claim that the Shari’ah
texts came as a proof for specific interests or by their type has become clear,
and from greater reasoning, the interests that were not mentioned by a text
from the Shari’ah that indicates that they are from the Shari’ah
evidences are also not considered.

Secondly, they made a condition
for Al-Masalih Al-Mursalah that for them to be Mursalah, there
must be no narration of a text in the Shari’ah that indicates that they
are considered, neither specifically nor by their type, and so their
stipulation is that there should not be a specific proof for it from the Shari’ah
and it is rather understood from the intentions of the Shari’ah. This
alone is enough to make it void in the view of the Shari’ah because the
lack of a proof which indicates it is enough to reject it since the rule sought
is the rule of the Shari’ah and not the rule from the mind. Therefore,
in order to consider it as being from the Shari’ah, it is imperative
that there is a proof which indicates that it is found in what came with the
Revelation, i.e. the Book and the Sunnah. So, the stipulation that there
is no text from the Shari’ah that indicates it is sufficient to reject
it as being from the Shari’ah.

With respect to Al-Masalih
Al-Mursalah being understood from the intentions of the Shari’ah,
the intentions of the Shari’ah are not a Shari’ah text which can
be understood such that what is understood from them can be considered a proof,
and so there is no value in what is understood from them as far as using them
as evidence for Shari’ah law. Furthermore, what is meant by the
intentions of the Shari’ah? If what is intended by it is what the texts
indicate, such as the prohibitions of fornication, stealing, murder, alcohol
and apostasy from Islam, then this is not an intention of the Shari’ah;
rather, it is the law for the actions of the worshipper and there is no looking
beyond the indication of the text. So, there is no place to consider that this
law which was understood from the text is Shari’ah evidence; rather, it
is a Shari’ah rule. By greater reasoning, there is no account given to
what the mind imagines from that law as being the purpose of the Shari’ah
to be from the Shari’ah evidences. So, how would you consider that which
is conceived from the mere imagination as a purpose of the Shari’ah to
be a Shari’ah evidence?!! Based upon this, the validity of what is
understood from the intentions of the Shari’ah is completely and utterly
void.

As for what is intended by what
is understood from all the wisdom (Hikma) of the Shari’ah, i.e.
the wisdom behind sending the Messenger and the fact that he was a mercy for all creation,
then this is a Hikma not an Illah, and the Hikma may or
may not be attained. Accordingly, it is not taken as a basis used as evidence
due to the possibility of its absence; therefore, by greater reasoning, what is
understood from the Hikma cannot be taken as a basis that is used for evidence.

Due to this, it would be
incorrect to consider that what is understood from what is known as the
intentions of the Shari’ah as being from the Shari’ah evidences.
It is also the case from this angle that the notion that what is understood to
be from the purpose of the Shari’ah to be Shari’ah evidence is
completely void. Accordingly, the invalidity of the notion that Al-Masalih
Al-Mursalah is from the Shari’ah evidences has become clear.

This is from the angle of the
causes that made them consider that Al-Masalih Al-Mursalah is Shari’ah evidence. As for the angle of
the Shari’ah proof that they are from the Shari’ah evidences,
there is absolutely no Shari’ah proof for that at all whether from the
Book or the Sunnah; neither a conclusive proof nor an indefinite one.
For this reason, it is incorrect to consider Al-Masalih Al-Mursalah as
being from the Shari’ah evidences.

From all of this, it becomes clear that the evidence
that the Revelation came with from Allah (swt), which are confirmed with
definite proof, are the four evidences and nothing else, and they are: the
Book, the Sunnah, the Ijma’ of the Companions and Qiyas
whose Illah is from the Shari’ah, and other than these four
evidences have no definite proof that indicates them. Accordingly, it has
become apparent that the Shari’ah evidences are only these four alone.

However, it should be clear that the rules deduced
from evidences other than these four, from amongst the rules that an Imam considered as Shari’ah rules, are Shari’ah rules in the eyes of those who
advocate them and those who oppose them because there exists a vague evidence
denoting that they are considered as evidences. Hence, the one who considers
the general consensus of the Ummah as being a Shari’ah evidence
and who then goes on to deduce from this a rule; consequently, this rule would
become a Shari’ah rule in his or her eyes and a binding Shari’ah
rule upon him or her, and he or she would be forbidden from taking another rule
instead. The same rule also becomes a Shari’ah rule in the eyes of those
who oppose it but it does not become a binding Shari’ah rule upon them.
The same applies to 'the Shari’ah
of those before us is a Shari’ah for us', Al-Masalih Al-Mursalah,
Istihsaan and rationality.

Hence, every rule deduced from any of these evidences
is considered a Shari’ah rule in the eyes of those who advocate that
what the rule has been deduced from is part of the Shari’ah evidences
and in the eyes of those who oppose it as well. However, it is only a binding Shari’ah
rule upon the one who deduces it and not binding upon the one who holds a
different understanding. This is like the rules deduced from the texts since
the difference in understanding the text does not make the deduced rule a Shari’ah
rule in the eyes of the one who deduced it and illegitimate in the eyes of the
one that opposed him or her in this understanding. Rather, it is a Shari’ah
rule from the viewpoint of all the Muslims as long as the possibility of
reaching such understanding from the text is possible; in other words, as long
as the doubted evidence (shubhat daleel) exists. However, it is not
considered a binding rule upon all the Muslims but only binding upon the one
who has deduced it and the one who has emulated it, and not binding upon the
one who has opposed it. Nonetheless, in any case it is a Shari’ah rule.
Likewise, the rule deduced from an evidence is exactly like the rule deduced
from the text; it is considered a Shari’ah rule in the eyes of all the
Muslims whether for those who considered it a Shari’ah evidence or for
those who did not consider it a Shari’ah evidence, provided the doubted
evidence is existent, such as in the case of the previous evidences which we
refuted their consideration as the Shari’ah evidences.

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